APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. (Los Angeles County Super. Ct. No. KA088414)
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part, and remanded.
Defendant and appellant Illuminado Espiritu (defendant) was convicted of attempted voluntary manslaughter (Pen. Code, §§ 664, and 192, subd. (a)*fn1 ), and battery with serious bodily injury (§ 243, subd. (d)). The jury initially found "not true" the allegation that defendant personally used a deadly weapon, but after the trial court sent the jury back for further deliberations to reconsider its verdict, they ultimately found the allegation to be true. On appeal, defendant contends that the trial court erred by not recording the jury's original "not true" finding on defendant's use of a deadly weapon allegation. We reverse the true finding on the use of a deadly weapon allegation under section 1161 and because the trial court controlled the verdict. We remand the matter for resentencing. We otherwise affirm.
Noemi Espiritu, defendant's former wife, testified that on October 9, 2009, defendant entered her residence, stated to her that, "I will kill you," stabbed her several times with a knife, and choked her.*fn2 During the encounter, Noemi held defendant's hand to prevent being stabbed again, and defendant stabbed himself. Noemi yelled to their son to call 911.
The son testified that he called 911 to report the incident, and saw his parents struggling over a knife. The son kicked his father and hit him with a kitchen chair, causing defendant to drop the knife.
Defendant testified that Noemi stabbed him first. During the incident, defendant and Noemi wrestled over the knife, and that may have caused Noemi to suffer her stab wounds. Defendant told a police officer that he only stabbed Noemi in self-defense.
The District Attorney of Los Angeles County filed a second amended information charging defendant with first degree burglary in violation of section 459 (count 1), attempted first degree murder in violation of sections 664 and 187, subdivision (a) (count 2), and mayhem in violation of section 203 (count 3).*fn3 As to the charge of attempted first degree murder, it was alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e), and defendant personally used a deadly and dangerous weapon, a knife, within the meaning of section 12022, subdivision (b)(1).
The matter was tried before a jury. The jury found defendant (1) not guilty of burglary, (2) not guilty of attempted murder, but guilty of the lesser offense of attempted voluntary manslaughter, and (3) not guilty of mayhem, but guilty of the lesser offense of battery with serious bodily injury. The jury also found true the allegations that the offense of attempted voluntary manslaughter involved great bodily injury under circumstances involving domestic violence, and that ...